Santa Monica: City Council revises law on sexually-oriented businesses in city

The Santa Monica City Council revised the city’s ordinance on sexually-oriented businesses Tuesday, October 11th, in an effort to create greater efficiency in enforcing current laws.

“Part of the reason we are doing this is because city residents have expressed concerns about the efficacy of the present ordinance,” said city attorney Marsha Moutrie.

“The proposed ordinance would not necessarily make any adult business currently in the city illegal. What it does is make it easier for residents and city staff to determine whether a business is an adult business that is subject to restrictions.”

Major revisions to the present ordinance establish a 30 percent threshold of sexually-oriented merchandise stocked and sold for a business to be defined as an adult business.

A business would be defined as an adult arcade, cabaret, hotel or motel, motion picture theater, performance hall, or retail use establishment if any of the following occurs:

n The business devotes 30 percent or more of the retail floor area to merchandise that depicts specific sexual activities or anatomical areas.

n The business devotes 30 percent or more of its retail inventory to merchandise that depicts specific sexual activities or anatomical areas.

n The retail value of merchandise that depicts specific sexual activities or anatomical areas is 30 percent or more of the total retail value of inventory that a business offers.

n Annual gross revenue derived from sexually-oriented merchandise sold in any merchandise category is 30 percent or more of the total gross revenue for the category.

The ordinance defines the five merchandise categories as books, magazines, videotapes or digital format materials, non-clothing novelties and devices, and on-premises viewing.

“As a parent, it is my job to protect my children from exposure to things that I don’t feel they are mature enough to interpret and evaluate,” said Nina Fresco, a Santa Monica resident and city Landmarks Commission member. “Imagine my dismay when rounding the corner from my home, my three-year-old asked why underpants in the window were made of candy.”

Mayor pro tem Herb Katz said he is aware of only three adult retail stores in the city.

“Santa Monica does not have a large number of adult businesses at present, but that does not denigrate the fact that people who live near those businesses don’t like them,” Moutrie said.

Councilmembers voted unanimously for the new ordinance.

Councilmembers Ken Genser and Kevin McKeown at first gave “no” votes because they wanted to establish a 20 percent threshold instead of a 30 percent threshold.

They immediately changed their votes after they found themselves in the minority.

“I would rather have the 20 percent threshold,” Genser said. “This is worth taking the risk.”

Moutrie and senior land use attorney Barry Rosenbaum recommended a 30 percent threshold because courts nationwide have struck down ordinances with lower thresholds.

Courts have ruled that businesses with less than 30 percent of sexually-oriented merchandise in stock do not create secondary impacts on neighborhoods.

Secondary impacts on neighborhoods are factors that cities can use to regulate sexually oriented businesses, which are protected by the U.S. Constitution and First Amendment.

For an ordinance to be upheld and pass the constitutional test, city councils would need to prove that restrictions are necessary to maintain residents’ quality of life.

“We have some concern with lowering the threshold,” Rosenbaum said. “When you have a low threshold, the courts have questioned whether secondary impacts can be demonstrated.”

Moutrie and Rosenbaum wrote in a staff report that research links sexually-oriented businesses to crimes such as narcotics use and distribution, prostitution, pandering, and violence against persons and property.

Other secondary impacts identified by the city attorneys are blight, deterioration, low property values, and the relocation of residents, parks, religious institutions, and schools if a sexually-oriented business is nearby.

The ordinance prohibits the concentration of sexually-oriented businesses by keeping them at least 1,000 feet away from each other.

Adult businesses are also zoned out of residential districts and kept within designated commercial districts.

Such businesses are not allowed within 500 feet of any religious institution, school, public park, public library, public playground, or residential district.

“Sexuality is a protected form of speech, but what we are trying to do here with this ordinance is minimize the criminal activity associated with these stores,” McKeown said. “We all agree that the secondary impacts of these stores are a concern for the community and we should pass an ordinance in its most protective form.”